SAN DIEGO (CN) — With the first Trump University class action approaching its post-election trial date, recently filed court documents reveal attorneys on both sides still can't agree on how the trial should be litigated.
Attorneys for both parties in the Low v. Trump University class action have submitted the first of their proposed jury instructions and special verdict forms which will advise the jury of the issues at hand in the consumer protection case.
Sonny Low and the other plaintiffs sued Republican presidential nominee Donald Trump and his now-defunct real estate school in 2010, claiming they were duped into paying upwards of $35,000 to learn insider real estate secrets from instructors purported to be handpicked by Trump himself. It turned out Trump was not involved much in the selection of teachers, and his attorneys have since said the school relied on "sales puffery" common in the advertising world to market itself as relying heavily on Trump's celebrity.
The trial will be two phases, with the jury tasked to decide in phase one if Trump is liable for using false advertising to get thousands of people to invest in Trump University. If Trump is found liable, phase two will determine what damages should be awarded to the former students.
In a host of court documents filed over the past few months, attorneys on both sides have revealed their inability to cooperate as the trial nears. Months after the trial date was set by U.S. District Judge Gonzalo Curiel, Trump's lead attorney Daniel Petrocelli tried to get the trial date pushed back due to a conflicting trial scheduled in another federal court. The plaintiffs' attorney Jason Forge vehemently opposed the request, calling it a "tactical decision that should not be rewarded by the court," and Curiel denied pushing back the 6 ½-year-old case.
The latest trial documents filed Oct. 28 by the plaintiffs say the class "did their best" to jointly submit proposed jury instructions agreed upon by both parties, but Trump and the other defendants failed to respond to the plaintiffs' edits. They claim Trump tried to "limit plaintiffs' ability to respond to newly cited authorities" and refused to authorize the filing because plaintiffs' "corrected defendants' last-minute misrepresentation of a prior order of this court, among other changes."
The class adds, "Plaintiffs remain ready and willing to collaborate with defendants and reach agreement to the extent possible, but cannot do so on their own."
Nearly every jury instruction in the massive 148-page filing was disputed by the plaintiffs or defendants.
The plaintiffs want Curiel to allow them to respond to any further changes made by Trump and the others to the jury instruction document which Curiel will read to the jury before the trial begins.
That supposed misrepresentation cited by the class is regarding the "sales puffery" argument that's been a main sticking point for the parties throughout the past year. The plaintiffs say Trump University misrepresented to consumers instructors were handpicked by Trump himself in violation of California Consumers Legal Remedy Act. That misrepresentation was material, the plaintiffs say, in that consumers relied on it in deciding to purchase a Trump University education and the defendants knew consumers would rely on the misrepresentation when making a purchase decision.
Low and the other plaintiffs object to Trump's proposed jury instructions on materiality and puffery, saying the defendants "misleadingly" put brackets around Curiel's prior order on puffery adding nothing to the analysis in an improper "attempt to insert the issue as a separate inquiry for trial." The plaintiffs also say the separate jury instruction on puffery "improperly engraft additional elements onto plaintiffs' claims" and argue the definition of puffery is "subsumed" by the definition of material making it unnecessary to distinguish between the two. They also claim jury instructions on puffery are "rarely, if ever, given."
Surprisingly, the parties agreed on instructions prohibiting jurors from discussing the details of the high-profile case in person or electronically, a standard instruction read to jurors deciding civil cases. It does not appear the jurors will be subject to heightened security concerns surrounding the case, but more information could be revealed in a jury questionnaire not yet filed with the court.
The Low v. Trump University trial is set begin Nov. 28.
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